Plumbers Local 460

National Labor Relations Board - Board Decisions

Dec 16, 1987

287 N.L.R.B. 788 (N.L.R.B. 1987)

788 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Local Union 460 of the United Association of Jour-
neymen and Apprentices of the Plumbing and
Pipefitting Industry of the United States and
Canada and Bruce E. Graham . Case 31-CB-
6416
16 December 1987
DECISION AND,ORDER
BY CHAIRMAN DOTSON AND MEMBERS
JOHANSEN AND STEPHENS
On 30 April 1986 Administrative Law Judge
Burton Litvack issued the attached decision. The
Respondent filed exceptions and a supporting brief,
and the General Counsel filed limited exceptions
and a supporting brief.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings, I and
conclusions, to modify the remedy,2 and to adopt
the recommended Order3 as modified.4
I In adopting the judge's findings of a violation, we rely solely on his
conclusions that the Respondent denied Graham the opportunity to pay
his dues delinquency until he paid in full another indebtedness (a $200
loan) and then struck his name from the out-of-work list because of his
entire indebtedness, not just his dues delinquency We place no reliance
on his secondary rationale concerning whether Graham was properly
subject to any financial obligation during the period of his unemploy-
ment This matter was neither alleged nor litigated in this proceeding and
we disavow the judge's comments on the issue
2 In accordance with our decision in New Horizons for the Retarded,
283 NLRB 1173 (1987), interest on and after 1 January 1987 shall be
computed at the "short-term Federal rate" for the underpayment of taxes
as set out in the 1986 amendment to 26 US C § 6621 Interest on
amounts accrued prior to 1 January 1987 (the effective date of the 1986
amendment to 26 U S C § 6621) shall be computed in accordance with
Florida Steel Corp, 231 NLRB 651 (1977)
3 The recommended Order is modified to require the expunction from
the Respondent's governing documents of provisions which require that
loans and assessments are payable before membership dues This a reason-
able remedy when, as here, the Respondent Union has maintained a col-
lective-bargaining agreement containing a union-security provision that,
in conjunction with the bylaw, would reasonably tend to coerce employ-
ees who seek referrals or actually work under such agreements into be-
lieving that they could be discharged for not paying loans or assessments
in advance of dues That such a bylaw could be lawfully enforced against
employees who do not work under such agreements in no way removes
its coercive impact on the others See Auto Workers Local 73 (McDonnell
Douglas), 282 NLRB 466 (1986) (expunction remedy), Electrical Construc-
tors Local 8 (San Francisco Elevator Co), 243 NLRB 53 (1979), 248
NLRB 951 (1980), enfd 665 F 2d 376 (9th Cir 1981) (theory of viola-
tion)
4 The General Counsel excepts to the judge's failure to include a visi-
tatorial clause in the recommended Order A visitatorial clause authorizes
the Board, for compliance purposes, to obtain discovery from the Re-
spondent under the Federal Rules of Civil Procedure under the supervi-
sion of the United States court of appeals enforcing this Order Under the
circumstances of this case, we find it unnecessary to include such a
clause Accordingly, we deny the General Counsel's request
287 NLRB No. 80
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified below and orders that the Re-
spondent, Local Union 460 of the United Associa-
tion of Journeymen and Apprentices of the Plumb-
ing and Pipefitting Industry of the United States
and Canada, Bakersfield, California, its officers,
agents, and representatives, shall take the action set
forth in the Order as modified.
1. Insert the following as paragraph 1(c) and re-
letter the subsequent paragraphs.
"(c) Maintaining in its governing documents sec-
tion 166(c) of the U.A. constitution to the extent it
provides: `National and Local assessments, discipli-
nary assessments and loans are payable before
dues."'
2. Insert the following as paragraph 2(d) and re-
letter the subsequent paragraphs.
"(d) Expunge from its governing documents the
portion of section 166(c) of the U.A. constitution
which requires that `National and Local assess-
ments, disciplinary assessments and loans are pay-
able before dues."'
3. Substitute the attached notice for that of the
administrative law judge.
MEMBER JOHANSEN, concurring in part and dis-
senting in part.
I agree with my colleagues that the Respondent
violated Section 8(b)(1)(A) and (2) by denying
Bruce E. Graham the opportunity to pay his dues
delinquency until he had paid in full another in-
debtedness to the Union and by striking his name
from the out-of-work list. I disagree, however,
with my colleagues' modification of the recom-
mended Order to require expunction of section
166(c) of the U.A. constitution from the Respond-
ent's governing documents. Section 166(c) provides
that "National and Local assessments, disciplinary
assessments and loans are payable before,dues."
Under Elevator Constructors Local 8 (San Francis-
co Elevator Co.),' union violates Section 8(b)(1)(A)
by a requirement that fines be paid before dues are
accepted when, as here, such rule is coupled with a
union-security clause. In San Francisco Elevator and
subsequent cases, 2 the Board has consistently
linked the prohibition to "the combination of the
fines payable bylaw with the union security
clause."3 Indeed, it is the continued threat of job
loss inherent in a union-security clause that renders
' 243 NLRB 53 (1979), enfd 665 F 2d 376 (D C Cir 1981)
z See Laborers Local 1445 (Badger Plants), 266 NLRB 386 (1983), cf
Teamsters Local 980 (Neilson Freight), 249 NLRB 46 (1980)
3 Laborers Local 1445, supra at 386
PLUMBERS LOCAL 460
the fines-payable clause coercive because employ-
ees reasonably assume that the union acting to en-
force the latter will seek their discharge under the
former. Thus, in San Francisco Elevator, the U.S.
Court of Appeals for the District of Columbia Cir-
cuit concluded in enforcing the Board ' s Order'
We find it similarly reasonable for the Board
to determine that a union security clause con-
joined with a fines payable bylaw may induce
unsophisticated employees to fear they will
lose their jobs if they do not pay their fines.4
[Emphasis added.]
Expunction from governing documents is only
an appropriate remedy for this violation if all Local
460 members subject to the fines-payable clause
were either covered by a contract containing a
union -security provision or potentially covered
under such an agreement by their dispatch from
the Union 's hiring halls-inferences that cannot be
drawn from this record . Thus, expunction is un-
warranted as section 166(c) can be construed not to
run afoul of Section 8(b)(1)(A).6
In San Francisco Elevator, 248 NLRB 951 (1980),
the Board , on motion for reconsideration, reaf-
firmed its original decision ? finding mere mainte-
nance of a fines-payable rule violated Section
8(b)(1)(A) and ordering expunction . The decision's
circular reasoning that prohibition of mere mainte-
nance of the rule was supported by the "implicit
threat imposed by the coordinated operation of Re-
spondent 's rule and a union -security clause" merely
begged the question why the rule was facially in-
valid rather than answered it. Thus, I would over-
rule San Francisco Elevator to the extent that it
looks to a local's unlawful application of provisions
in governing documents to justify their expunction.
4 665 F 2d at 386
s See General Truck Drivers Local 980, supra at 46
6 See Scofield v NLRB , 394 U S 423 ( 1969) My colleagues ' reliance
on Auto Workers Local 73 (McDonnell Douglas), 282 NLRB 466 ( 1986), is
misplaced as there the restriction on resignations the Board ordered ex-
punged was facially invalid and unenforceable Thus, mere maintenance
of such a constitutional provision in the local 's governing documents re-
strained and coerced any employee who may have been unaware of the
provision 's unenforceability Nor may the Respondent ' s maintenance of
this rule be analogized to an overly broad employer no-solicitation ban,
see Engineers & Scientists Guild (Lockheed- California), 268 NLRB 311
(1983), as, unlike here , a threat to employment is always implicit in any
employer regulation of employee conduct
7 243 NLRB 53 (1979)
APPENDIX
NOTICE To EMPLOYEES AND MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
789
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
WE WILL NOT refuse to accept the dues pay-
ments of our members or any other employees
unless they discharge their entire indebtedness to
us, including the repayment of loans and other as-
sessments.
WE WILL NOT remove the names of members or
any other employees from our hiring hall out-of-
work lists for reasons other than their failure to
tender periodic dues and initiation fees, uniformly
required as a condition of acquiring or retaining
membership including the repayment of loans and
other assessments.
WE WILL NOT in any like or related manner re-
strain or coerce employees , members, job appli-
cants, or registrants in the exercise of the rights
guaranteed by Section 7 of the Act.
WE WILL remove from our governing docu-
ments the portion of section 166(c) of the U.A.
constitution to the extent it provides "National and
Local assessments , disciplinary assessments and
loans are payable before dues."
WE WILL make Bruce E. Graham whole, with
interest , for any wages and benefits he may have
lost as a result of our unlawful removal of his name
from the hiring hall pipefitters ' out-of-work list.
LOCAL UNION 460 OF THE UNITED
ASSOCIATION OF JOURNEYMEN AND
APPRENTICES OF THE PLUMBING AND
PIPEFITTING INDUSTRY OF THE
UNITED STATES AND CANADA
Benard T Hopkins, Esq ., for the General Counsel.
Eugene Miller, Esq. (Miller & Sincoff), of Seaside , Califor-
nia, for the Respondent.
DECISION
STATEMENT OF THE CASE
BURTON LITVACK, Administrative Law Judge Bruce
E Graham, an individual , filed the underlying unfair
labor practice charge in the above-captioned matter on
October 31 , 1985.1 Based on the charge , the Regional
Director of Region 31 of the National Labor Relations
i Unless otherwise stated , all events here occurred during calendar
year 1985
790 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Board (the Board), issued a complaint on December 12,
1985, alleging that Local Union 460 of the United Asso-
ciation of Journeymen and Apprentices of the Plumbing
and Pipefitting Industry of the United States and Canada
(Respondent), engaged in acts and conduct violative of
Section 8(b)(1)(A) and (2) of the National Labor Rela-
tions Act (the Act). Respondent timely filed an answer,
denying the commission of any unfair labor practices.
The hearing in this matter was tried before me in Bakers-
field, California, on February 6, 1986. At the hearing, all
parties were afforded the opportunity to examine and
cross-examine witnesses, to offer into the record all rele-
vant evidence, to argue their legal positions orally, and
to file posthearing briefs. The documents were filed by
both counsel for the General Counsel and counsel for
Respondent and have been carefully considered. Accord-
ingly, based on the entire record here, including the
posthearing briefs and my observation of the demeanor
of the witnesses,2 I make the following
FINDINGS OF FACT
I JURISDICTION
The complaint alleges that the Plumbing and Mechani-
cal Contractors Association of Kern, Inyo, and Mono
Counties, Inc. (the Association), is a multiemployer asso-
ciation, comprised of various employers engaged in the
building and construction industry whose principal of-
fices and places of business are in Kern, Inyo, and Mono
Counties, California, which exists, in part, for the pur-
pose of negotiating, executing, and administering collec-
tive-bargaining agreements on behalf of its employer-
members with the collective-bargaining representatives
of their employees, including Respondent. The parties
stipulated that one such employer-member of the associa-
tion is McCullough Mechanical, Inc., which has an office
and principal place of business in Palmdale, California,
and that McCullough Mechanical, Inc annually pur-
chases and receives goods and services valued in excess
of $50,000 either directly from suppliers located outside
the State of California or directly from suppliers located
within the State of California and receive goods and
services in the same form from outside California
It. LABOR ORGANIZATION
Respondent admits that , at all times material, it has
been a labor organization within the meaning of Section
2(5) of the Act.
111. THE ISSUES
The issues3 here concern Respondent's refusal to
accept dues payments from Graham and its removal of
2 The only witness at the hearing was Charging Party Graham, and I
must state that I was singularly unimpressed with not only his ability to
recall the particulars of pertinent conversations and events but also his
demeanor while testifying Nevertheless, obviously cognizant that
Graham was the sole witness, I have taken his account of the conversa-
tions and events, pointing out significant contradictions and inconsisten-
cies where warranted, as the correct version
Respondent's motion to correct the transcript here is granted
3 The complaint alleges that the union-security clause, sec 3, of the
existing collective-bargaining agreement, effective from July 1, 1984, to
the latter's name from the appropriate hiring hall out-of-
work list about October 29 and whether the acts were
undertaken for reasons other than the Charging Party's
failure to tender periodic dues and initiation fees uni-
formly required as a condition of acquiring and retaining
membership in Respondent-in violation of Section
8(b)(1)(A) and (2) of the Act.
IV. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Facts
The record established that Charging Party Graham
lived in Bakersfield, California, from 1972 until Decem-
ber 1985; that he became a member of Respondent in
November 1978 and worked as a journeyman piperfitter;
and that, between 1978 and November 1985, he utilized
Respondent's hiring hallo "exclusively" as a source of
employment. Graham was laid off from a job on April
10, and, later that month, he went to Respondent's office,
registering on the pipefitters' out-of-work list and paying
a monthly dues delinquency for the period January
through March. The record further establishes that
Graham was umemployed from April 10 through Octo-
ber 29 and that, during that entire time period, he was
delinquent in his monthly dues, making no such pay-
ments to Respondent for any of those months. In addi-
tion, on April 22, Graham applied for and received a
$200 loan from Respondent's general fund. The loan
became due and payable "within ninety (90) days from
the date" on which the Charging Party executed the
promissory note and received the money, and, among
the loan conditions, was the following: "As per the U.A.
Constitution, Section 166(c), `National and Local assess-
ments, disciplinary assessments and loans are payable
before dues."' There is no dispute that Graham failed to
repay to Respondent any of the borrowed money On
October 1, Graham was expelled from its membership by
June 30, 1987, between the Association and Respondent, requires work-
men, as a condition of employment, to become members of Respondent
not later than 7 days following the beginning of employment and that the
language fails to provide the 7 full days allowed by the Act in violation
of Sec 8(b)(I)(A) and (2) of the Act Respondent admitted the past exist-
ence of such a contract provision but denied the alleged legal conse-
quences At the hearing, counsel for Respondent represented that the
above provision had been amended by the contracting parties to require
membership in Respondent not later than 8 days following the com-
mencement of employment Counsel for the General Counsel accepted
this representation and stated that the complaint allegation was a "non
issue" and that he would not request a remedy for the allegation Based
on the foregoing, as it would not effectuate the policies and purposes of
the Act to find that previous contractual language unlawful, I shall rec-
ommend that the complaint be dismissed insofar as it alleges that Re-
spondent violated Sec 8(b)(1)(A) and (2) of the Act by maintaining and
enforcing an unlawful contractual union-security provision and treat the
union-security clause as being lawful at all times material
4 Respondent admitted that, pursuant to its existing collective-bargain-
ing agreement with the Association, it maintains and operates an exclu-
sive hiring procedure whereby it exercises the exclusive authority to refer
employees for employment to the various employer-members, including
those who adopt the agreement between the Association and Respondent
on a single employer basis Under the exclusive job referral procedure,
Respondent is required to maintain separate out-of-work lists for each job
classification, with dispatches from the lists done "in numerical sequence
of seniority " Finally, an employer may request "SO percent of his man-
power" by name and, thereby, bypass the formal procedure
PLUMBERS LOCAL 460
Respondent ostensibly "for (6) months nonpayment of
union dues "
In early July, the Charging Party received a letter
dated July 2 from Jeff Bryson , Respondent's business
manager and financial secretary . It read as follows:
According to our records, your membership dues
through Local #460 are currently paid through the
month of 3/85, being 4 months delinquent
Please note that six (6) months delinquency con-
stitutes expulsion from the Union . Please contact
our office immediately upon receipt of this notice, if
you wish to keep your membership in Local #460.5
In early August , Graham received a similar letter from
Bryson , informing him that he was now 5 months delin-
quent in his monthly dues. Shortly thereafter, he re-
ceived a "statement of account," dated August 12, from
Respondent , informing the Charging Party that, as of
that date, he owed $419 to Respondent . The total was
composed of the following charges : $ 151 in delinquent
dues, $18 in death benefits; the $200 outstanding loan;
and a $50 reinstatement fees, With regard to the $200
loam payment , the "statement of account" read, "Loan
due in full before dues."
A few days after receipt of the latter document,
Graham placed a telephone call to Respondent 's office in
order to speak to Don Park , a business agent' The im-
portance of what was said during their ensuing conversa-
tion is manifest , however, it must be noted that the
Charging Party's testimony regarding it was inconsistent
and contradictory . He initially testified that , after being
connected with Park , "I asked Don if I could maybe pay
some . . how much I could pay of this to get me off
the hook , he said he would get back to me ." A few min-
utes later , "he returned my call .. . he said that it would
have to be paid in full . . . . We can ' t got with a partial
either on the dues or the [loan] and the $50.00 is going to
the point where it's the full $419.00." Graham told Park
that he had a job opportunity in San Jose and asked if
there was some way he could get a travel card so that "I
can get my head above water, maybe in that area." Park
failed to respond , and the conversation ended . 8 During
5 The parties stipulated that after a 6-month dues delinquency , an indi-
vidual is expelled from membership in Respondent
ti Graham stated that he understood the death benefits assessment as
one regularly required when members die Likewise, he was aware that
Respondent assesses a $50 reinstatement fee to members who are delin-
quent in dues payments The parties stipulated that such is regularly as-
sessed 90 days after a delinquency
7 Respondent admitted Park 's status as its agent within the meaning of
Sec 2(13) of the Act
8 Graham understood that "the loan had to be paid before the dues
could be accepted ", he referred to the $419 figure as the "total package"
and understood that, when Park refused to accept a partial payment, "he
was referring to the dues , to the $50 00 reinstatement fee and the $200
dollar loan "
Graham averred that he was , at all times , "financially unable to come
up with $200 for the loan I could have made $30 00 dues payments
I was asking for help to alleviate or to hold in check the expulsion "
He added that " I wanted to make a payment either the loan or the dues
whatever would take [so] I might have been able to leave the area
on a travel card "
I asked the Charging Party if he specified what his partial payment
was, and he replied, "No, I just asked for help "
791
cross-examination , the Charging Party initially claimed
that he specifically offered to pay 1 month 's dues-he
told Park , " I can probably . come up with a month
or so, I cannot come up with $419, it's impossible."9
Later , asked again what he offered to pay, Graham an-
swered ". . . I told him I could not come up with the
full, I said if I looked and asked friends I might come up
with some of it, I didn 't give him a specific amount," He
added that he offered to pay "part of the total not
the dues but the whole package" and denied offering to
pay $30 in dues . However , after being shown his pretrial
affidavit , Graham admitted stating that he offered to pay
$30 as such was all " I could probably muster up," with
the payment constituting 1 month 's dues.
Graham testified that , subsequent to the above tele-
phone conversation , and through October 1 , he visited
Respondent 's office "once or twice weekly" as "I was
trying to save my membership." On one such occasion in
early September , he spoke to Park in the latter 's office,
and "I asked if it was possible that I could get some help
where I would be allowed to travel to the San Jose area.
. . And I was told my dues had to be paid current
before a card could be issued ." The Charging Party
added that all his conversations with Park prior to Octo-
ber 1 were identical regarding his dues delinquency-"it
had to be paid in full .. There could be no partial
payment upon it " Later during direct examination,
Graham contradicted himself as to what payment Re-
spondent was requiring-"The body of my conversations
with Mr . Park is always . . . the same each time I came
to his office asking for help . . . and the answer was the
same . . The answer was the payment in full . . it
was the $419 00 . . . in full , the payment had to be made
in full." Asked to be more specific , Graham stated that
Park demanded the "total package" and not just payment
of the existing dues delinquency . During cross-examina-
tion, Graham averred that these several conversations
concerned both traveling out of Respondent 's territorial
jurisdiction and forestalling expulsion-"our conversa-
tion went in both areas, to travel to try to . . . sustain
myself and to forestall [explusion] " One conversation, in
particular , concerned the latter subject and occurred
"near the end ." Graham told Park that his wife was to
enter a hospital and that his health insurance was about
to lapse. "She has to be in the hospital , I've got to have
insurance , I've to work to keep it into effect . How long
would keeping my dues from . . . going into expulsion
And there's nothing that his office could do for me . . .
because the [sic] not work being let in the area." Finally,
as in the August telephone conversation , he assertedly
9 Graham testified that it was a practice of Respondent 's members, in
order to avoid payment of the $50 reinstatement fee, to make a month's
dues payment after being delinquent for the 3 previous months inasmuch
as the reinstatement fee normally was assessed after the fourth month of
delinquency He claimed that this practice did not have Respondent's
sanction, but "this is an individual effort on each member that pays dues,
they are constantly sent letters , you'll be in arrears , your reinstatement
fee will be charged to you So you come in and you pay up, you
bring it up to where they cannot levy the fine , is what I'm saying " Fur-
ther, Graham asserted that had Park accepted his tender of a $30 dues
payment , (Graham) "would have put off" explusion "till another month "
792 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
continually offered to pay "part of the total . not the
dues but the whole package."
During September and October, Graham continued to
receive notices of his indebtedness and the consequences
of such from Respondent. In September, he received a
letter, dated September 4, from Respondent's finance
committee, informing him that his $200 loan had been
given for a period of 90 days and that his "regular union
dues will not be accepted until your loan is paid in full."
Graham next received a letter, dated 2 days later, from
Business Manager and Financial Secretary Bryson, in-
forming him that he was 6 months delinquent and warn-
ing in large capital letters "IF PAYMENT IS NOT RE-
CEIVED BY 9/30/85, YOU WILL GO EXPELLED
FOR NONPAYMENT OF DUES." In October, the
Charging Party received another letter regarding the
unpaid loan, i 0 and, as a followup to the above-stated
warning, he received a letter, dated October 1, from
Bryson, the letter stating that Graham had been expelled
from membership in Respondent "for (6) months nonpay-
ment of union dues."
Subsequent to his explusion from membership, on Oc-
tober 29, Graham went to Respondent's office "to see if
I still was on the out of work list or if I had been ex-
pelled from it." He discovered that his name was number
42 or 43 on the pipefitters' list but,that "my name had
been penciled through and to the right hand side were
the letters in ink, expelled " Angered, Graham tore the
sheet of paper from the referral list and went into Park's'
office. He asked the business agent why his name had
been removed from the out-of-work list; Park pointed to
the October 1 letter, saying Graham had been expelled
for nonpayment of dues. Although it is clear Graham's
name had been removed from Respondent's dispatch
lists, there is no record evidence that he would ever
have been dispatched subsequent to October 29
B. Analysis
Crediting, as I do, Bruce E Graham's uncontroverted
version of the events here, the conclusions are mandated
that what Respondent, at all times, sought from the
Charging Party was the payment of his entire indebted-
ness to Respondent, that the latter's eventual actions
against Graham were motivated by his failure to dis-
charge the debt, and that Graham's 6-month dues delin-
quency and his unrepaid $200 loan from Respondent
were- inextricably intertwined by the conduct of the
latter. Thus, while seemingly separate debts, the delin-
quent dues payments and the unrepaid loan were linked
by Respondent's constitutional provision, set forth on
Graham's promissory note, requiring payment of the loan
before dues payments are credited, by documents sent to
the Charging Party by Respondent, and by the com-
ments of its admitted agent Park. Regarding the corre-
spondence sent to Graham, he received, in August, a
"statement of account," setting forth his entire indebted-
ness (a sum totaling $419 and including the delinquent
dues, the unrepaid loan, and a death benefits assessment),
from Respondent. Further, in that document and subse-
10 The letter again advised Graham that the loan had to be repaid in
full" before regular dues would be accepted by Respondent
quent letters, received by Graham in September and Oc-
tober and never disavowed by Respondent, the latter in-
formed Graham that any dues payments by him would
not be accepted until the $200 loan amount was repaid
"in full " Regarding the statements of Park, during the
August telephone conversation and subsequent fact-to-
face meetings with Graham, the former confirmed Re-
spondent's position that what it required from Graham
"to get [him] off of the hook" was payment of the entire
$419 and that no partial payment-be it a month's dues
or some other amount-in lieu thereof would be accept-
ed i i In these circumstances, while the eventual striking
of Graham's name from the hiring hall pipefitters' out-of-
work list seemingly resulted from his expulsion from
membership in Respondent, which act was linked to his
6-month dues delinquency, the conclusion is warranted
that the underlying motivation-and what Respondent
actually was 'seeking from Graham-was his entire in-
debtedness, including the unrepaid loan. 12
In discussing the relevant Board law pertaining to mat-
ters of this type, it is important to note that the existing
collective-bargaining agreement between the Association
and Respondent, pursuant to which the latter operates an
exclusive employee fob referral system for the Associa-
tion's employer-members and for other employers who
adopt the terms of the above contract, contains standard
building and construction industry union-security clause,
under which Respondent may utilize the "continuing
threat of job loss to exert pressure on an employee to
maintain . . membership status." Elevator Constructors
Local 8 (San Francisco Elevator Co.), 248 NLRB 951
(1980), enfd. 665 F.2d 376 (D.C. Cir 1981) This power
is not without limitations. Thus, "both Section 8(a)(3)
and 8(b)(2) of the Act make clear . that the job-relat-
ed threat inherent in union-security agreements must ad-
dress only `the failure of the employee to tender periodic
dues and initiation fees uniformly required as a condition
of acquiring or retaining membership."' Id. Laborers
Local 1445 (Badger Plants), 266 NLRB 386 (1983); Brick-
layers Local 11-(Rochester Floors), 221 NLRB 133 (1975).
Clearly, then, Respondent would have been privileged to
have sought the removal of Graham from any job, to
which he had been dispatched, based solely on his failure
to pay his delinquent membership dues. Rather than pur-
11 Respondent's counsel's motion, at the hearing, to strike Graham's
testimony, regarding his August telephone conversation with Park, as
being outside the parameters of par 10(b) of the complaint is granted to
the extent it is contended that, in the conversation, Graham requested
that Respondent accept a partial payment of his membership dues Al-
though the Charging Party tendered a partial payment of some amount
and Park rejected it and insisted on receiving a payment encompassing
Graham's entire debt, it is utterly impossible, given the latter's contradic-
tory testimony, to conclude that he offered to pay a portion of his delin-
quent dues in any event, the allegations of par 10(b) of the complaint
appear to be established by Respondent's letters and other documents
that were sent to, and received by, Graham
'Z Set forth next to his stricken name on the out-of-work list was the
word "expelled" and such leads to the inevitable conclusion that Gra-
ham's expulsion from membership resulted in his name being removed
Therefore, while it would normally follow that whatever caused his ex-
plusion from membership in Respondent also was the rationale for strik-
ing his name from the out-of-work list, I believe Park was, in reality, ob-
fuscating Respondent's actual motivation, Graham's failure to discharge
his entire indebtedness
PLUMBERS LOCAL 460 793
suing this procedure, Respondent chose to remove the
Charging Party's name from its pipefitters' out-of-work
list, and it is well settled that Respodonent could proper-
ly "implement [its] union-security agreement by a hiring
practice which requires the payment of [delinquent dues]
before referral of an applicant who already had his grace
period"' 3 Ladies Garment Workers Local 55 (Mayfair
Coat & Suit Co), 140 NLRB 1333, 1335 (1963) Further,
such lawful hiring practices could include a refusal to
register a delinquent member for dispatch. Cf. Seafarers
Atlantic District (Isthmian Lines), 202 NLRB 657, 658
(1973). However, the converse must also be true. That is,
if Respondent was not privileged to implement the con-
tractual union-security clause to seek Graham's removal
from a job, it could not then, implement the said provi-
sion by removing his name from the appropriate hiring
hall out-of-work list, thereby refusing to dispatch him to
work in the first instance. Seafarers, supra. As to this, it
is well established that a threat of employment loss or, as
here, a refusal to register for dispatch, pursuant to a
union-security clause, cannot be based on the nonpay-
ment of union fines or assessments or be utilized to
compel the payment of unliquidated debts, such sums
being beyond periodic membership dues and initiation
fees. Laborers Local 1445, supra; Elevator Constructors
Local 8, supra, Bricklayers Local 11, supra at 137-138
I have previously concluded that Respondent's dis-
guised motivation in removing Graham's name from the
pipefitters' out-of-work list was his failure to repay his
total indebtedness, including his unrepaid $200 loan, and
not merely the delinquent dues payments and that the
October 1 letter and Business Agent Park's comments on
October 29, which attributed the actions taken against
Graham solely to his dues delinquency, were attempts at
obfuscation. In this regard, the instant matter is similar to
Bricklayers Local 11, supra, wherein the Board concluded
that a labor organization violated Section 8(b)(l)(A) of
the Act by requiring an individual to pay a new member-
ship initiation fee when his previous loss of good-stand-
ing membership was attributable to the labor organiza-
tion's refusal to accept dues until he paid an unliquidated
debt While, unlike herein, said debt was owed to a third
party, the situations are clearly analogous inasmuch as
the union therein and Respondent here would not accept
the payment of dues until the unliquidated debts were
entirely satisfied and as contractual union-security provi-
sions were invoked for failure to pay the debts. Based on
the foregoing, I find that the General Counsel has estab-
lished that Respondent engaged in conduct violative of
Section 8(b)(1)(A) and (2) of the Act. II
In defense, counsel for Respondent initially asserts that
Graham's name was removed from the pipefitters' out-of-
work list by Respondent "because of non-payment of
13 Inasmuch as Graham had been a member of Respondent since 1978
and continually utilized its hiring hall until October 1985, the inference is
warranted that he already had his statutory grace period
14 The removal of Graham's name from the pipefitters' out-of-work list
by itself constitutes a violation of Sec 8(b)(l)(A) and (2) of the Act It is
irrelevant that there may have been no jobs available at the time Gra-
ham's name was removed fiom the list Operating Engineers Local 370
(Associated General Contractors), 224 NLRB 641, 645 (1976), Utility & In-
dustrial Construction Co, 214 NLRB 1053 (1974)
dues, not non-payment of the loan " Indeed, if one only
considerd the October 1 letter, such a conclusion might
have some factual basis; however, the record as a whole
mandates the conclusion, which I have reached above,
that Respondent engaged in the foregoing act based on
the Charging Party's total debt, including the unrepaid
$200 loan Respondent's own correspondence to Graham
and the uncontroverted comments attributed to Business
Agent Park by the former were conclusive on this point
Counsel next argues that, if Respondent's application of
the contractual union-security clause against Graham
was proscribed by Section 8(b)(1)(A) and (2) of the Act,
"at the very least, a tender of uniformly required dues
and initiation fees [was] required" on his part In this
regard, noting that Graham failed to tender even a
month's dues payment prior to the levy of the $50 rein-
statement and that he admitted not being able to afford
tendering the entire delinquency amount, counsel asserts
in his posthearing brief that the futility of a tender by
Graham is a nonissue in these circumstances as he "was
not deterred from making a tender because of any appar-
ent futility to do so caused by the Union, but be-
cause of his own inability to make proper dues tender "
Contrary to counsel, in the instant factual context, as I
believe that Graham had no monetary obligation to Re-
spondent for the time period April through October, the
matter of whether a tender by him was required is irrele-
vant. Thus, the Board has consistently held that a labor
organization violates the Act when it causes the dis-
charge of an employee for nonpayment of dues during a
period of time, such as when he is unemployed, when
the union could not lawfully compel membership as a
condition of employment Painters Local 277 (Webb New
Jersey), 278 NLRB 169, 171 (1986), Teamsters Local 600
(Spector Freight System), 123 NLRB 43 (1959). Here,
there is no dispute that Graham was unemployed during
the entire period of his dues delinquency In Carolina
Drywall Co, 204 NLRB 1091 (1973), an individual who
was a member of a labor organization was laid off from
work for a period of 3 months during which time he
paid no membership dues, nor did he tender any, to the
labor organization. On the individual's recall to work,
the former, based on the union-security provision of its
collective-bargaining agreement with the employer,
sought his termination for the nonpayment of dues that
had accrued while the individual was in layoff status.
Notwithstanding that the individual had never made a
tender of his delinquency, the Board concluded that
seeking the payment of dues, under the threat of job loss,
for a period during which he was unemployed contra-
vened the Act. this was so as he was under no statutory
obligation to maintain his union membership for that
time period Id at 1094-1095 The same considerations, I
believe, apply here, and Graham was under no compul-
sion to pay membership dues to Respondent from April
until his name was removed from the pipefitters' out-of-
work list at the end of October-during which time he
was on layoff status.15 Accordingly, the matter of a
15 That Graham was, at all times, registered on Respondent's hiring
hall out-of-work list is irrelevant
794 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
tender of part of his entire dues delinquency is not a rele-
vant consideration in these circumstances.'i 6
Based on the foregoing, I find that Respondent en-
gaged in conduct violative of Section 8(b)(1)(A) of the
Act when it precluded the payment of any membership
dues payments until Graham discharged his entire in-
debtedness, including the unrepaid $200 loan, and that
Respondent engaged in conduct violative' of Section
8(b)(1)(A) and (2) of the Act when it removed Graham's
name from the appropriate out-of-work list on October
29 for the same reason.
CONCLUSIONS OF LAW
1. The Association and its employer-members are em-
ployers engaged in commerce and' in business affecting
commerce within the meaning of Section 2(6) and (7) of
the Act.
2. Respondent is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. The existing collective-bargaining- agreement be-
tween the Association and Respondent contains a union-
security provision and establishes a hiring and job refer-
ral system whereby Respondent administers, and exer-
cises, the exclusive authority to refer employees to the
various employer-members of the Association and to
other nonmembers, who adopt the above, agreement on a
single-employer basis.
4. In the circumstances of paragraph 3 above, by pre-
cluding Bruce E. Graham's payment of a dues delinquen-
cy until he paid an entire indebtedness, including an un-
repaid loan, Respondent engaged in conduct violative of
Section 8(b)(1)(A) of the Act.
5. In the circumstances of paragraph 3 above, by re-
moving Bruce E. Graham's name from its hiring hall
out-of-work list on October 29 based on his entire in-
debtedness, including an unrepaid loan, Respondent en-
gaged in conduct violative of Section 8(b)(1)(A) and (2)
of the Act.
6. The above-described unfair labor practices have a
substantial effect on interstate commerce.
-7 Unless specifically found, Respondent engaged in no
unfair labor practices.
THE REMEDY
Having determined here that Respondent engaged in
certain unfair labor practices within the meaning of Sec-
tion 8(b)(1)(A) and (2) of the Act, I shall recommend
that Respondent be ordered- to cease and desist there-
from and to take affirmative action in order,to effectuate
the policies of the Act. In particular, having found that
Respondent unlawfully removed Bruce E. Graham's
16 Assuming arguendo the relevancy of a tender by Graham of his
dues delinquency to Respondent , I note that he did offer to make some
sort of a "partial" payment in August but that Park informed him that
Respondent would take nothing less than payment of his entire indebted-
ness , including the unrepaid loan amount and unpaid death assessments
Thus, while it is true that Graham was unable to tender the entire dues
delinquency, it is also true that such would not have been accepted by
Respondent in lieu of payment of the entire $419 Therefore, the tender
truly would have been futile and, therefore, unnecessary Finally, I note
that there is no allegation by Respondent that Graham acted as a "free
rider "
name from the hiring hall pipefitters' out-of-work , list, 17
I shall recommend that Respondent `be ordered to make
him whole for any loss of wages and benefits he may
have suffered from,the date Graham would have been
next dispatched until the date of completion of the job to
which he would have been dispatched. Backpay shall be
computed in the manner set forth in F W,' Woolworth
Co., 90 NLRB `289 (1950), with interest thereon as pre-
scribed in Florida Steel Corp., 231- NLRB 651 (1977), and
Isis Plumbing Co., 138 NLRB 716 (1962)
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed1s
ORDER
The Respondent, Local Union 460 of the United Asso-
ciation of Journeymen and Apprentices of the Plumbing
and Pipefitting Industry of the United States and Canada,
Bakersfield, California, its officers, agents, and represent-
atives, shall
1. Cease and desist from
(a) Refusing to accept dues payments from members or
any other -employees unless they discharge their entire
indebtedness to Respondent, including the repayment of
a loan and other assessments.
(b) Removing the names of members and any other
employee from its hiring hall out-of-work lists for rea-
sons other than their failure to tender periodic dues and
initiation fees, uniformly required as a condition of ac-
quiring or retaining membership in Respondent, includ-
ing the repayment of a loan and other assessments.
(c) In any like or related manner restraining or coerc-
ing employees, members, job applicants, or registrants in
the exercise of the rights guaranteed by Section 7 of the
Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act. t9
(a) Make Bruce E. Graham whole, with interest, for
any wages and benefits he may have lost as a result of
the removal of his name from the hiring hall pipefitters'
out-of-work list about October 29, 1985
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
hiring records, dispatcher lists, referral cards, and other
documents necessary to analyze and compute the amount
of backpay due to Graham.
1' 1 have previously concluded that it was not necessary for the Gen-
eral Counsel to establish that an actual job, to which Graham was eligible
for dispatch, existed See fn 14, above
18 If no exceptions are filed as provided by Sec 102 46 of the-Board's
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec 102 48 of the Rules , be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses
19 The General Counsel requests an order that includes a visitatonal
provision Without deciding on the merits of such, I note that such is not
included in the standard Board orders in unfair labor practice cases of
this type and believe that it is solely within the province of the Board to
order the inclusion of such a provision Accordingly, I shall not rule on
this request, believing such is more properly presented to the Board In
any event, par 2(b) of the Order seemingly disposes of the need for the
requested provision
PLUMBERS LOCAL 460
(c) Remove from its files any reference to the removal
of Graham's name from the out-of-work lists and notify
him, in writing, that this has been done and that evidence
of Respondent's conduct shall not be used as a basis for
future action against him
(d) Post at its business offices, hiring hall, and meeting
places in Bakersfield, California, copies of the attached
notice marked "Appendix "20 Copies of the notice, on
forms provided by the Regional Director for Region 31,
after being signed by the Respondent's authorized repre-
20 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading "Posted by Order of the Nation-
al Labor Relations Board " shall read "Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board "
795
sentative, shall be posted by the Respondent immediately
upon receipt and maintained for 60 consecutive days in
conspicuous places including all places where notices to
members and employees are customarily posted. Reason-
able steps shall be taken by the Respondent to ensure
that the notices are not altered, defaced, or covered by
any other material
(e) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
IT IS FURTHER ORDERED that the complaint be, dis-
missed insofar as it alleges that the union-security clause
in the collective-bargaining agreement, between the As-
sociation and Respondent, is violative of Section
8(b)(1)(A) and (2) of the Act